This is the rich encomium paid to the Court by Master Vibhu, the ten year old son of the appellant and respondent. The little one present in Court today is exuberantly happy and sought liberty to present a handmade card expressing his joy on the settlement of all the disputes and litigations between his mother and father. Their marriage was solemnized as per Hindu rites on 18.05.1997. They have two children – Bhuvi, the elder daughter born on 19.04.1998 and Vibhu, son born on 31.01.2008. On account of marital discord and temperamental differences, they have been living separately since March, 2011. They are involved in various litigations, civil as well as criminal. As of now, twenty three cases are pending before various courts – Trial Courts, High Court, this Court and one before the Consumer Forum.

Statutory Period of six months can waived in Mutual Consent divorce By Supreme Court of India,

Divorce by mutual consent is the fastest way or procedure of getting divorce in India. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce under mutual consent, it is necessary for the husband and wife to have lived separately for at least a year. Divorce by mutual consent is fastest because parties can get divorce in six months only and can be shortened if the parties are living separately since long time spam. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under under following Acts which very according to law applicable to parties:-

Sec. 13-B of The Hindu Marriage Act.

Sec. 28 of The Special Marriage Act.

Sec.10-A of The Indian Divorce Act.

The procedure for seeking a divorce by mutual consent is same under each Act, which is initiated by filing a petition, supported by affidavits from both partners, in the Court of Civil Judge Senior Division. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners present in Court, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required to reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, before filling petition are custody of child, alimony to wife, return of dowry items or “Istreedhan” and litigation expenses which should be mentioned in their petition for divorce by mutual consent,.

However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an inquiry. And if the concerned party continues to refuse consent to the divorce petition, the court will no longer have the right to grant a divorce decree. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties

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In The Matter of Amardeep Singh Vs Harveen Kaur the Hon’ble Supreme Court held that:- …

It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions:

i) How long parties have been married?

ii) How long litigation is pending?

iii) How long they have been staying apart?

iv) Are there any other proceedings between the parties?

v) Have the parties attended mediation/conciliation?

vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?

14 AIR 2010 Ker 157

The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.

We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably
broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh’s “Principles of Statutory Interpretation” (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors.15as follows:

15 (2005) 4 SCC 480
“The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’ “ ‘For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.”

Applying the above to the present situation, we are of the view that where the Court dealing with a matter is
satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.

. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

. Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.
The parties are now at liberty to move the concerned court for fresh consideration in the light of this order.

. In the present case, no petition under Section 13-B of the Act has been filed. The petitioner wants for a decree in divorce suit under Section 13 of the Act, in view of compromise dated 10.10.2014, as this compromise would operate as estoppel against the respondents. Rule of estoppel is a rule of evidence. There can be no estoppel against statute. Supreme Court in State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545, held that it is now well known, the rule of estoppel has no application where contention as regards a constitutional provision or a statute is raised.. Section 13-B itself gives liberty for second thought to the parties. The consent must continue during the interregnum period and after this period the parties should again confirm their consent before the Court. As held by Supreme Court in various cases cited above, the parties can withdraw their consent during this period. As such Rule of estoppel has no application in a petition under Section 13-B of the Act.

The Hon’ble Supreme Court in case of Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, held that the language employed in Section 13-B(2) of the Act is clear. The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
In other words, if the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression “divorce by mutual consent” would be otiose.

Hon’ble Ram Surat Ram (Maurya),J.
1. Heard Sri S.K. Varma, Senior Advocate, assisted by Sri Siddhartha Varma, for the petitioner and Sri H.M.B. Sinha along with Sri Dhirendra Pratap Singh, for the respondent.
2. This petition has been filed for setting aside the order of Principal Judge Family Court dated 08.10.2015, deferring disposal of application (28-C) filed by the petitioner and fixing a date for framing issues in Divorce Suit and to issue direction to Principal Judge Family Court, to decree Divorce Suit in view of compromise dated 10.10.2014, entered into between the parties.
3. Ashish Kumar Srivastava (the petitioner) married to Smt. Ankita Srivastava (the respondent) according to Hindu rites on 17.05.2011. The petitioner filed a suit on 26.05.2012 (registered as Divorce Suit No. 321 of 2012) under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for grant of decree of divorce. It is alleged that in retaliation to this suit, the respondent initiated following proceedings against the petitioner and his family members:-
(I) Criminal Case No. 721 of 2012, arising out of Case Crime No. 270 of 2012 under Section 498-A, 323, 504, 506 IPC and 3/4 of Dowry Prohibition Act, PS Shahpur, district Gorakhpur.
(II) Case No. 564 of 2012 under Section 125 Cr.P.C.
(III) Case No. 39 of 2013 under Prevention of Domestic Violence Act, 2005.
(IV) Case No. 116 of 2013 U/S. 406 IPC and 3/4 of Dowry Prohibition Act.
(V) Case No. 1393 of 2013 under Section 323, 504, 506, 379 IPC.
(VI) Case Crime No. 116 of 2013 under Section 504, 506 IPC
(VII) Matrimonial Suit No. 712 of 2013 under Section 9 of Hindu Marriage Act.
4. The petitioner filed an application under Section 482 Cr.P.C. (registered as Criminal Misc. Application U/S 482 Cr.P.C. No. 425 of 2013) for quashing, entire proceeding of Criminal Case No. 721 of 2012, under Section 498-A, 323, 504, 506 IPC and 3/4 of Dowry Prohibition Act, PS Shahpur, district Gorakhpur. This Court vide order dated 18.01.2013 referred the dispute to Mediation and Conciliation Center., Allahabad. The parties settled their dispute before Mediator, who submitted report dated 11.09.2013. Under the settlement the petitioner had to pay Rs. 18,00,000/- as one time permanent alimony to the respondent and permit her to take ornament from bank locker. After compliance of this condition, the respondents agreed to withdraw all the complaints and suit filed by her. Divorce Suit No. 321 of 2011 has to be decreed. When the case was listed before this Court on 09.09.2014, the petitioner took time for payment of aforesaid amount as such 09.10.2014 was fixed before this Court. On 09.10.2014, the petitioner gave two bank drafts of Rs. 18,00,000/- in favour of the respondents in Court. The case was adjourned for 10.10.2014 in order to enable the parties to file written compromise. On 10.10.2014, the parties filed joint affidavit in the shape of compromise, incorporating aforementioned terms. Both the parties appeared before the Court on 10.10.2004 and filed joint affidavit in shape of compromise. Two bank drafts of Rs. 18,00,000/- was handed over to the respondent by the Court. Criminal Misc. Application U/S 482 Cr.P.C. No. 425 of 2013 was allowed and Criminal Case No. 721 of 2012 was quashed by order dated 10.10.2014.
5. The petitioner filed an application (18-C) dated 22.10.2014, before Principal Judge Family Court, for decreeing Divorce Suit No. 321 of 2012 in view of the compromise dated 10.10.2014, the aforesaid. The respondent filed an application before this Court for recalling order dated 10.10.2014. When application (18-C) came for hearing before Principal Judge Family Court, the respondent raised an objection that as she had filed an application for recalling order dated 10.10.2014 as such disposal of application (18-C) be postponed. On which Principal Judge Family Court did hear the application (18-C) on 07.01.2015. This Court by order dated 24.07.2015 rejected the recall application filed by the respondent for recalling the order dated 10.10.2014.
6. Then the petitioner filed another application (28-C) dated 30.07.2015, before Principal Judge Family Court, for decreeing Divorce Suit No. 321 of 2012 in view of the compromise dated 10.10.2014, the aforesaid, stating therein that recall application filed by the respondent has been rejected. By the impugned order dated 08.10.2015, disposal of this application was deferred holding that divorce on compromise can only be granted according to provisions of Section 13-B and not in proceeding under Section 13 of the Act. The petitioner filed an appeal (registered as First Appeal No. 596 of 2015) under Section 19 of Family Court Act, 1984, against aforesaid order which was dismissed by order dated 18.11.2015 on the ground that the order dated 08.10.2015 was an interlocutory order and the appeal was not maintainable. Hence, this petition has been filed.
7. The counsel for the petitioner submitted that Section 28 of Special Marriage Act, 1954 provides for mutual divorce. Legislature thought it proper to provide more easy procedure of divorce to Hindus also. By Act No. 68 of 1976, Section 13-B was added under of the Act which provided divorce by mutual consent. Thereafter, Family Court Act, 1984 was enacted. Section 9 of Act, 1984 castes a statutory duty upon Family Courts to persuade the parties to settle their dispute in respect of the subject-matter of the suit. By virtue of Section 10 of the Act, 1984, entire provisions of Code of Civil Procedure, 1908 have been applied to the proceeding before Family Court. Thus provisions of Order 23 Rule 3 C.P.C. is applicable in the proceeding before Family Court. A combined reading of provisions of Section 9 and 10 of the Act, 1984 makes it clear that Family Court at first instance will persuade the parties to settle their dispute in respect of the subject-matter of the suit and if such settlement is arrived then they can file a compromise before Family Court in the suit and suit can be decided in terms of compromise. The suit for divorce under Section 13 of the Act, 1955 is not an exception to the application to Section 9 and 10 of the Act, 1984. As such suit for divorce can also be decided in terms of compromise. Phrase “Subject to the provisions of this Act” used under Section 13-B means in accordance with the provisions of Section 23 of the Act. The compromise operates as estoppel against the parties to it as held by Supreme Court in Nagubai Ammal Vs. B. Shama Rao, AIR 1956 SC 593. The compromise dated 10.10.2014 was duly signed by the parties and verified by this Court in presence of the parties. It is a lawful compromise and has been acted upon in part. The respondent took Rs. 18,00,000/- and ornaments from locker as agreed under this compromise. She had taken benefit of compromise. It is an estoppel by deed as well as estoppel by record. She is now estopped from raising objection that suit for divorce cannot be decreed in terms of compromise, as held by Supreme Court in S. Shanmugam Pillai Vs. K. Shanmugam Pillai, AIR 1972 SC 2059. This Court in Jodhey Vs. State AIR 1952 SC 788 held that High Court has unlimited judicial power. This compromise can be treated as “family settlement”. It acknowledges right and liability of the parties and can be enforced under the law as held by Supreme Court in Sahu Madho Das Vs. Mukund Ram, AIR 1955 SC 481. This Court in Jokhan Vs. Ram Deo, AIR 1967 All 212 has held that the compromise cannot be ignored only for the reason that compromise was entered before the Court which has no jurisdiction. Supreme Court in B.C. Chaturvedi Vs. Union of India, (1995) 6 SCC 749, held that power conferred under Article 142 of the Constitution is also available to High Court for doing compete justice between the parties. Family Court placed reliance upon the judgment of Supreme Court in Sanjeeta Das Vs. Tapan Kumar Mohanti, (2010) 10 SCC 222. This judgment has not taken any notice of Section 9 and 10 of Family Court Act, 1984 as such it is per-incuriam and does not lay binding precedent as held by Supreme Court in State of U.P. Vs. Synthetins and Chemicals Ltd. (1991) 4 SCC 139. Otherwise also in this case, there was no clause for divorce in the compromise. This Court in Indrawal Vs. Radhey Ram, AIR 1981 All 151 and Supreme Court in Dr. (Mrs) Leena Roy Vs. Dr. Subrato Roy, AIR 1991 SC 92 and Raj Kumar Rana Vs. Rita Rathore, AIR 2015 SC 2668, decreed divorce petition under Section 13 of the Act, on compromise. Impugned order is illegal and liable to be set aside and Family Court is liable to be directed to decree the divorce suit in view of compromise dated 10.10.2014.
8. I have considered the arguments of counsel for the parties and examined the record. Old Hindu law did not allow divorce amongst Hindus of upper communities. In communities of lower strata of Hindus, custom relating to divorce was prevalent. After independence, Special Marriage Act, 1954 was enacted, which is applied to persons whose marriage was performed and registered under that Act for divorce. Section 27 provides for divorce and Section 28 provides for mutual divorce under this Act. Thereafter, Hindu Marriage Act, 1955 was enacted and provisions relating to divorce was provided under Section 13 for all the Hindus and its sub-sect. Thereafter, legislature thought to provide more easy procedure of divorce to Hindus. By Act No. 68 of 1976, Section 13-B was added under of the Act which provided divorce by mutual consent. Supreme Court in Gurbux Singh v. Harminder Kaur, (2010) 14 SCC 301, held that once the marriage has been solemnized among Hindus then it cannot be dissolved, except on the grounds enumerated in Section 13, of Hindu Marriage Act, 1955 or according to Section 13-B. Section 13-B of Hindu Marriage Act, 1955 is quoted below:-
13-B. Divorce by mutual consent.–(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

9. Aim and object of enactment of Family Court Act, 1984 was to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. Under Section 7 of this Act, jurisdiction of Family Court was conferred to exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation to Section 7 of the Act. Thus Family Court has to exercise same jurisdiction, which is exercisable by the Court under the law. Thus it is clear that if a petition is filed under the provisions of Hindu Marriage Act, 1955, then Family Court will exercise jurisdiction that Act only. So far as application of Civil Procedure Code, 1908 is concerned, procedure provided under it has to be followed for exercising jurisdiction Hindu Marriage Act, 1955. In case of contradiction, provisions of Hindu Marriage Act, 1955 would have overriding effect. The counsel for the petitioner relied upon Section 9 and 10, of Family Court Act, 1984 which are quoted below:-
9. Duty of Family Court to make efforts for settlement.– (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit of proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings.
10. Procedure generally.–(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973) (2 of 1974), before a Family Court and for the purposes of the said provisions of the Code, Family Court shall be deemed to be a civil court and shall have all the powers of such court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made there under, shall apply to the proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one Party and denied by the other.
20. Act to have overriding effect.–The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

10. A bare reading of the aforesaid provisions shows that although Act, 1984 has an overriding effect but Section 7 of the Act provides for Family Court to exercise jurisdiction conferred under the Act, in which petitions enumerated in Explanation to Section 7 have been filed. For trial of suit for divorce under Section 13 of Hindu Marriage Act, 1955, Family Court has to follow the procedure of C.P.C. but decree of divorce can be granted only on the grounds enumerated under Section 13 of the Act. Hindu Marriage Act, 1955 provides two modes for divorce namely (i) on the grounds mentioned under Section 13 of the Act or (ii) on mutual consent for which a petition has to be presented by both the parties to the marriage and after interregnum period of six they again attorn their consent before the Court. It is well settled principle that when the statute provides a particular procedure for doing an act then the act has to be done according to that procedure and not at all. In this respect judgment of Supreme Court in K.S. Saini Vs. H.C. Delhi, (2012) 4 SCC 307 may be referred.
11. Issue as the whether consent given at the initial stage for divorce can be withdrawn at the later stage came for consideration before Supreme Court in Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, in which it has been held that from the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”. What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.
Sub-section (2) requires the court to hear the parties which means both the parties. If one of the parties at that stage says that “I have withdrawn my consent”, or “I am not a willing party to the divorce”, the court cannot pass a decree of divorce by mutual consent. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. “The consent must continue to decree nisi and must be valid subsisting consent when the case is heard”.

12. Again a Bench of three Hon’ble Judges of Supreme Court in Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338, held that we are of the view that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the said Act can be passed by the court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its fact situation, discussed above.
In our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. Same view has been taken in Sanjeeta Das v. Tapan Kumar Mohanty, (2010) 10 SCC 222, in which it has been held that more importantly, the consent of the parties is of no relevance in the matter. No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties dehors the grounds enumerated under Section 13 of the Act, unless of course the consenting parties proceed under Section 13-B of the Act.
13. Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, held that the language employed in Section 13-B(2) of the Act is clear. The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
In other words, if the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression “divorce by mutual consent” would be otiose.
14 In Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, it has also been held that the power under Article 142 of the Constitution is plenipotentiary. However, it is an extraordinary jurisdiction vested by the Constitution with implicit trust and faith and, therefore, extraordinary care and caution has to be observed while exercising this jurisdiction. Even if the chances are infinitesimal for the marriage to survive, it is not for this Court to use its power under Article 142 to dissolve the marriage as having broken down irretrievably.
15. In the present case, no petition under Section 13-B of the Act has been filed. The petitioner wants for a decree in divorce suit under Section 13 of the Act, in view of compromise dated 10.10.2014, as this compromise would operate as estoppel against the respondents. Rule of estoppel is a rule of evidence. There can be no estoppel against statute. Supreme Court in State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545, held that it is now well known, the rule of estoppel has no application where contention as regards a constitutional provision or a statute is raised.. Section 13-B itself gives liberty for second thought to the parties. The consent must continue during the interregnum period and after this period the parties should again confirm their consent before the Court. As held by Supreme Court in various cases cited above, the parties can withdraw their consent during this period. As such Rule of estoppel has no application in a petition under Section 13-B of the Act.
16. In view of aforesaid discussions, this petition has no merit and is dismissed.
Order Date :- 8.4.2016
Jaideep/-

India has different divorce laws for different religions. Almost all the religions has their own divorce laws in India which are used among themselves. There are separate laws for inter-cast or inter-religion marriages. Divorce laws in India for Hindus is described in Hindu Marriage Act, 1955. Hindu Marriage Act is also used for Sikhs, Buddhists and Jains as they don’t have their own separate marriage and divorce laws. Here is the list of various divorce laws in India for various religions:

The Indian Divorce, Act Special Marriage Act, the Parsi Marriage and Divorce Act and the Hindu Marriage Act, provide for annulment of the marriage, since its very inception, on grounds such as the non-fulfillment of mandatory conditions.. The Indian Divorce act requires confirmation by the High Court to come into effect.

Grounds for Divorce in India

In India divorce is granted mainly on 4 different grounds.

Adultery

Desertion

Cruelty

Impotency

Chronic Diseases

Contested Divorce under Hindu Marriage Act 1955

Divorce. 

(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

16 [(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]

16 [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

16 [(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

17 [(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation .In this clause,

(a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has 18 [***] been suffering from a virulent and incurable form of leprosy; or

(v) has 18 [***] been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 19 [***] 20 [ Explanation. In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

Mutual Consent Divorce under Hindu Marriage Act.

Divorce by Mutual Consent

Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.

Sec.13-B of Hindu Marriage Act 1955- Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Procedure for Filing for Divorce

The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or “streedhan” and litigation expenses.

ANNULMENT OF MARRIAGE UNDER HINDU MARRIAGE ACT:

There are two ways to legally end a marriage – annulment and divorce. An annulment is a legal procedure which cancels a marriage between a man and a woman. Annulling a marriage is as though it is completely erased – legally, it declares that the marriage never technically existed and was never valid. A divorce, or legal dissolution of a marriage, is the ending of a valid marriage between a man and a woman returning both parties to single status with the ability to remarry. While each individual state has its own laws regarding the grounds for an annulment or for a divorce, certain requirements apply nationwide.

An annulment case can be initiated by either the husband or the wife in the marriage. The party initiating the annulment must prove that he or she has the grounds to do so and if it can be proven, the marriage will be considered null and void by the court. The following is a list of common grounds for annulment and a short explanation of each point:

Bigamy –either party was already married to another person at the time of the marriage
Forced Consent – one of the spouses was forced or threatened into marriage and only entered into it under duress.

Fraud – one of the spouses agreed to the marriage based on the lies or misrepresentation of the other.

Marriage Prohibited By Law – Marriage between parties that based on their familial relationship is considered incestuous.

Mental Illness – either spouse was mentally ill or emotionally disturbed at the time of the marriage.

Mental Incapacity – either spouse was under the influence of alcohol or drugs at the time of the marriage and was unable to make informed consent.
Inability to Consummate Marriage – either spouse was physically incapable of having sexual relations or impotent during the marriage.

Underage Marriage – either spouse was too young to enter into marriage without parental consent or court approval.

Depending on your state of residence, a divorce can be much more complicated than an annulment. Like annulment cases, each state has its own set of laws regarding divorce. In most divorce cases, marital assets are divided and debts are settled. If the marriage has produced children, a divorce proceeding determines custody of the children, visitation rights and spousal and child support issues.

Each state can have either a “no-fault” divorce or a “fault” divorce. A no-fault divorce allows the dissolution of a legal marriage with neither spouse being named the “guilty party” or the cause for the marital break-up.

Many states now offer the “no-fault” divorce option, a dissolution of a legal marriage in which neither party accepts blame for the marital break-up. In the absence of a “guilty party,” some states require a waiting period of a legal separation before a no-fault divorce can take place. For this reason, in addition to cases where one spouse wishes to assign blame, some parties seek to expedite the legal process by pursuing a traditional, “fault” divorce.

A “fault” divorce is only granted when one spouse can prove adequate grounds. Like an annulment, these grounds vary from state to state, however, there are some overarching commonalities. These guidelines often include addition to drugs, alcohol or gambling, incurable mental illness, and conviction of a crime. The major grounds for divorce that apply in every state are listed below:Adultery – one or both spouses engages in extramarital relationships with others during the marriage.

Desertion – one spouse abandons the other, physically and emotionally, for a lengthy period of time.

Physical/Emotional Abuse – one spouse subjects the other to physical or violent attacks or emotional or psychological abuse such as abusive language, and threats of physical violence.

Your state law and particular situation will determine whether or not your annulment or divorce will be simple or complex. Familiarizing yourself with the laws for your particular state is the best way to learn what your rights are in the case of a marital dissolution.

Nullity of marriage and divorce:- Void marriagesAny marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5. 12. Voidable.

Marriages.-(1) Any marriage solemnized, whether before or after the
commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotency of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-

(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorcewithinoneyear from the date ofmarriage?

(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?

23. I would like to extract hereunder SectiThe points for consideration are:
(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date ofmarriage?
(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?
23. I would like to extract hereunder Section 14 of the Hindu Marriage Act, 1955:
“14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorcebefore the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”
24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.
39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition fordivorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.
———————————————————————————————————
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 20/11/2012

CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA

C.R.P.(PD)(MD)No.2265 of 2012
and
C.R.P.(PD)(MD)No.2266 of 2012
and
M.P.(MD)No.1 of 2012
in
C.R.P.(PD)(MD)No.2265 of 2012

C.R.P.(PD)(MD)No.2265 of 2012:

G.Ganesh Babu … Petitioner/Petitioner/
Respondent
Vs.
A.P.Arthi … Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.
!For Petitioner … Mr.K.K.Ramakrishnan ^For Respondent … Mr.J.Barathan * * * * * C.R.P.(PD)(MD)No.2266 of 2012:
G.Ganesh Babu … Petitioner/Petitioner/ Respondent Vs.
A.P.Arthi … Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.
For Petitioner … Mr.K.K.Ramakrishnan For Respondent … Mr.J.Barathan * * * * * :COMMON ORDER C.R.P(PD)(MD)No.2265 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.
2. C.R.P(PD)(MD)No.2266 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.
3. Heard both sides.
4. The petitioner herein namely G.Ganesh Babu and the respondent herein namely A.P.Arthi, are referred to hereunder as husband and wife respectively.
5. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these Civil Revision Petitions, would run thus:
(i) The wife filed the H.M.O.P.No.82 of 2011, during the month of June’ 2011, so to say, within a period of one year from the date of marriage, invoking Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking the following reliefs:
“(a) granting a decree of divorce, dissolving the marriage solemnized between the Petitioner and Respondent on 18.11.2010;
(b) directing the Respondent to pay the costs of this Petition;” however, without filing an application to obtain the leave citing the exceptional circumstances.
(ii) The husband after entering appearance, filed the application in I.A.No.184 of 2011 for rejection of the H.M.O.P.No.82 of 2011 on the main ground that it was presented within one year from the date of marriage and that too, without any application to obtain leave citing exceptional circumstances. The counter affidavit was filed by the husband.
(iii) Whereupon I.A.No.26 of 2012 was filed by the wife seeking virtually ex post facto leave underSection 14(1) of the Hindu Marriage Act, 1955.
(iv) The lower Court heard both the applications and passed a common order allowing the application filed by the wife and dismissing the application filed by the husband.
6. Being aggrieved by and dissatisfied with the same, the husband preferred these two Civil Revision Petitions challenging and impugning the orders passed by the lower Court.
7. The nutshell facts absolutely necessary for the disposal of these two Civil Revision Petitions would run thus:
The petitioner and the respondent got married as per Hindu rites and customs on 18.11.2010 at Aruppukottai. Subsequently, the wife during June’ 2011, so to say, within one year, filed the petition seeking divorce.
8. The learned Counsel for the husband would put forth and set forth his arguments, the warp and woof of the same, would run thus: Obtaining the leave of the Court is sine quo non for filing the H.M.O.P., for divorce within one year and it is mandatory and it cannot be simply ignored as directory. The object of Section 14 of the Hindu Marriage Act, 1955, was not taken into consideration by the lower Court. If this sort of practice is allowed, then the sanctity attached to the marriages, would be set at naught. Over and above that, the reasons found stated for obtaining the said ex post facto leave is frivolous and there is nothing exceptional in it. The dowry demand is the pith and marrow of the alleged exceptional circumstances found set out in the affidavit accompanying the petition filed by the wife. Accordingly, the learned Counsel for the husband citing various precedents, would pray for allowing the I.A.No.184 of 2011 and for dismissal of H.M.O.P.No.82 of 2011.
9. Whereas in a bid to mince meat and torpedo and pulverise the arguments as put forth on the side of the husband, the learned Counsel for the wife, would pyramid his arguments, the pith and marrow of them would run thus: The entire reading of Section 14 of the Hindu Marriage Act, 1955, would connote and denote, project and portray that the obtention of such leave was not mandatory. So far this case is concerned, it is not that wilfully the H.M.O.P.No.82 of 2011 was filed within one year without obtaining leave and unwittingly alone, the petition for divorce was filed without filing the application under Section 14 of the Hindu Marriage Act, 1955, narrating the exceptional circumstances. As such, the lower Court taking into consideration the pro et contra, thought that it would be a mere waste of time to reject the H.M.O.P., and thereby paving the way for the wife to file a fresh petition for divorce on the same grounds.
10. The learned Counsel for the wife also cited various decisions in support of his arguments.
11. The points for consideration are:
(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date of marriage?
(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?
Point Nos.(i) and (ii)
12. At the outset itself, I would like to fumigate my mind with the decisions cited by both sides.
13. The learned Counsel for the husband placed reliance on the following decisions:
(i) Swamidoss Joseph v. Miss Edward reported in A.I.R. 1955 MADRAS 341.
(ii) Vinod v. Manju reported in AIR 1982 DELHI 592.
(iii) Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC).
(iv) Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.
14. The learned Counsel for the wife relied on the following precedents:
(i) Rabindra Nath Mukherjee v. ITI Mukherjee alias Chatterjee reported in CDJ 1991 Cal HC 017.
(ii) Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435.
(iii) Manisha Jha (Smt). v. Kunal Kanti Jha reported in CDJ 1998 Cal HC
019.
(iv) Kailash v. Nanhku and others reported in (2005) 4 Supreme Court Cases
480.
(v) R.N.Jadi and Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.
(vi) Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140.
(vii) Gijoosh Gopi, Alappuzha v. S.Sruthi, Alappuzha reported in CDJ 2012 Ker HC 832.
15. A mere running of the eye over the aforesaid precedents would highlight and spotlight the fact that the Division Bench of the Calcutta High Court in Rabindra Nath Mukherjee v. ITI Mukherjeealias Chatterjee reported in CDJ 1991 Cal HC 017, held that seeking leave of the Court within one year to file the petition for divorce from the date of marriage, was only directory and not mandatory and the said decision was followed by the learned Single Judge of this Court inIndumathi v. Krishnamurthy reported in 1998 (III) MLJ 435. The aforesaid decision of this Court is also followed by the learned Single Judge of the Calcutta High Court in Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140. However, the Division Bench of the Karnataka High Court took a different view of the matter in Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.
16. As such, the decision of the learned Single Judge of this Court following the decision of the Division Bench of the Calcutta High Court, is very much available before me. Normally, the decisions rendered by the learned Single Judge of this Court should be followed by another learned Single Judge of this Court and the judicial discipline warrants such a procedure.
17. However, the learned Counsel for the husband would place reliance on the decision of the Division Bench of the Karnataka High Court, which is against the decision of the learned Single Judge of this Court as well as the Division Bench of the Calcutta High Court Simply because, a subsequent Division Bench of Karnataka High Court is in variance with the decision of the learned Single Judge of this Court and the Division Bench of the Calcutta High Court, I am not bound to simply follow the said judgment of the Karnataka High Court. The learned Single Judge of this Court placed reliance on the decision of the Division Bench of Calcutta High Court. As such, two Division Benches of two different High Courts have two different views and the learned Single Judge of this Court followed the view of one of such decisions of the Division Benches and wherefore, I am justified in following the decision of the learned Single Judge of this Court and consequently, the decision of the Division Bench of the Calcutta High Court.
18. Over and above that, I would also like to independently furnish my own views in this matter.
19. My mind is redolent and reminiscent of the following legal maxims:
(i) “Verba generalia generaliter sunt intelligenda”. [General words are to be understood generally.]
(ii) “Verba ita sunt intelligenda, ut res magis valeat quam pereat.” [Words are to be so understood that the matter may have effect rather than fail.]
(iii) “Maledicta expositio quae corrumpit textum”. [It is a cursed construction that corrupts the text.]
(iv) “Absoluta sententia non indiget expositore”. [A simple proposition needs no expositor.]
20. I would also like to extract hereunder the relevant excerpt from the famous treatise “Maxwell on The Interpretation of Statutes [Twelfth Edition by P. St. J. Langan]”:
Chapter 5 – Restrictive Construction:
“Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended.”
One other excerpt from the same treatise would run thus: “Section 12 (3) of the Matrimonial Causes Act 1950 provided that if the spouse obtaining a decree nisi of divorce did not make an application for it to be made absolute six months after the trial, then the other spouse could make application within a further period of three months and, if the circumstances warranted, obtain a decree absolute. The Court of Appeal held that this did not oust the jurisdiction of the court to substitute a decree of judicial separation for a decree nisi: “had it been the intention of the legislature to revoke this jurisdiction, it would have been done in a clearer way than by inference from the subsection.”
21. On a mere running of the eye over those legal maxims and the principles found enshrined in the aforesaid famous treatise, I am of the view that generally, the time limit prescribed in the procedural laws are directory and not mandatory and further that they are only by way of taking a cue that the time limit prescribed under Section 14 of the Hindu Marriage Act, 1955, will not cut at the jurisdiction of the Court. However, the learned Counsel for the husband placing reliance on the decision of the Honourable Apex Court in Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC), would submit that so far Marriage Laws are concerned, time stipulated cannot be taken as directory, but it should be taken as mandatory.
22. I would like to point out that in the aforesaid decision of the Honourable Apex Court relating to Section 13-B of the Hindu Marriage Act, 1955, what was found stressed is that the consent of both sides should be essential at both stages, viz., at the time of jointly presenting the petition and at the time of obtention of divorce after the prescribed period of six months. There could be no quarrel over such a proposition. However, Section 14 of the Hindu Marriage Act, 1955, is on a different footing.
23. I would like to extract hereunder Section 14 of the Hindu Marriage Act, 1955:
“14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”
24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.
25. At this juncture, I would like to recollect the following decisions:
(i) Kailash v. Nanhku reported in 2005 (3) CTC 355.
(ii) Rani Kusum v. Kanchan Devi reported in (2005) 6 Supreme Court Cases
705.
(iii) Salem Advocate Bar Association v. Union of India reported in (2005) 6 Supreme Court Cases 344.
(iv) R.N.Jadi & Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.
(v) Zolba v. Keshao and others reported in (2008) 11 Supreme Court Cases
769.
26. The pith and marrow, the gist and kernel of the aforesaid precedents is that whenever any condition is stipulated in law in negative language, then that itself is not sufficient to hold that the law contemplated the said provision as mandatory, but the consequences of such non-adhering to the time limit also should be found spelt out in the statutory provision. Under Order VIII Rule 1 of the Code of Civil Procedure, even though in negative language, the provisions are found spelt out, the consequences were not found spelt out. Hence, the Honourable Apex Court consistently held that such time stipulated cannot be taken as mandatory, so much so also, here under Section 14 of the Hindu Marriage Act, 1955, the legislators in their wisdom thought not to impose any consequences of such non-adherence to the time limit.
27. On the other hand, as correctly held by the learned Single Judge of this Court earlier, in the decision cited supra, even a person who got leave by misrepresentation was given the benefit of divorce, but that would take effect after one year from the date of marriage. Hence, I am of the considered view that the decision of the learned Single Judge of this Court in Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435 with great respect is the binding precedent on the point concerned.
28. The learned Counsel for the husband also referred to the Halsbury’s Laws of England – Fourth Edition – by Lord Mackay of Clashfern – Volume 29(3) – 2001.
29. I am of the view that when the earlier decision of this Court is clear and unambiguous on the point, I need not dilate further on that issue.
30. On factual basis, the learned Counsel for the husband would try to canvass his case by pointing out that so far the exceptional circumstances mandated in the affidavit of the wife, are not really exceptional circumstances, but they are only relating to alleged dowry harassment and cruelty. Whereas the learned Counsel for the wife would submit that the allegations found spelt out in the affidavit accompanying the application filed by the wife seeking ex post facto leave were of such a nature that they were so horrible for the wife who is a Doctor by profession.
31. The wife in her affidavit accompanying the application in I.A.No.26 of 2012, set out thus:
“4. I submit that even before the solemnization of marriage, the respondent and his family members demanded 120 sovereign of golden jewels, Rs.8,00,000/- cash and stridhan articles worth about Rs.2,00,000/- from my parents. My parents were put under severe strain and mental agony as they had to arrange the above dowry before the solemnization of marriage. Only after receiving the cash amount of Rs.8,00,000/- on hand one day prior to the marriage, the respondent has agreed to perform the marriage.
5. I submit that after marriage, the conjugal home was set up at Arupukkotai in the house of respondent. At the time of living at Arupukkottai, the respondent has demanded a further dowry of Rs.60,00,000/- from me by saying that his father has borrowed huge amounts from outer sources as a loan to get higher education for him and hence, he has to settle those amounts by getting dowry amount from me. The respondent added that he had married me for money alone. The respondent’s father, and his father’s brother namely, Gunasekaran, the respondent’s brother and sister have often harassed and tortured me to get money to the tune of Rupees Sixty lakhs and a Honda city car from me.
6. The Respondent and his family members often threatened me that they will not allow me to live peacefully, unless I brought the above said dowry amount from my parents I lived at Hosur under unsafe condition under threat to life from the respondent. I submit that the respondent used to demand dowry continuously without any basis, and hence, because of the above said attitudes of the respondent, I could not lead a peaceful family life.
7. I submit that I am living separately till date. Even though my parents conducted peace talks with the respondent and his family, all the efforts made by them had gone on vain and the respondent firmly states that unless his additional dowry demand of Rupees Sixty Lakhs and Honda city car and a house at Arupukkottai is fulfilled, there is no possibility of unite with the petitioner.
8. It is submitted that finally on 10.3.2011, a peace talk was arranged by the respondent with caste leaders, relatives and elders. In that peace talks, the respondent and his family members told that unless, their additional dowry demands are fulfilled, there is no other way except to dissolve the marriage by way of divorce. Hence, we filed a divorce petition by mutual consent before this Hon’ble Court without any prior condition. More over, a divorce agreement was executed between me and the respondent on 10.3.2011 itself, before the competent witnesses and the respondent has put his left hand thumb impression in the said agreement engrossed in Rs.50/- Stamp paper. On the same date itself, the respondent has got the signatures of me and my parents in several blank papers and unfilled stamp papers. Even though the respondent has agreed to return the stridhan articles and cash amount in the Court. The respondent has got back his “Thali” tied to me and all the formalities were done before the above said competent witnesses on 10.3.2011.
9. I submit that myself and respondent has filed a divorce petition under mutual consent before this Hon’ble Court in H.M.O.P.No.50 of 2011. To my shock and surprise, the respondent told me that unless the house property at Arupukkottai is purchased and given in his name for the tune of Rs.40,00,000/-, he will not accept for mutual divorce. As the respondent’s illegal demand could not be fulfilled by me, I filed the present H.M.O.P.No.82/2011.”
(extracted as such.)
32. As such, based on the above narration of facts, she contended that because of exceptional circumstances found set out therein, she was constrained to file the H.M.O.P.No.82 of 2011, within a period of one year from the date of marriage. No doubt, those allegations are only allegations and they were not proved. But, in my considered opinion, those are all serious allegations of exceptional nature and the lower Court also treated as exceptional circumstances, warranting no interference by this Court.
33. It is a singularly singular case wherein the husband and the wife both happened to be Doctors in medical profession and from the view point of the wife, the conduct of the husband in treating her constituted the exceptional circumstances and utmost hardship and discomfiture. The lower Court being the first Court of facts, after considering the allegations and counter allegations, thought fit to virtually grant ex post facto leave and this Court being the revisional Court is having no reason to interfere with the same.
34. As suggested by the learned Counsel for the husband, if the H.M.O.P., has to be dismissed, it would not be for anything, but for the wife to file a fresh H.M.O.P., on the same grounds. As such, the same process already underwent would enure. The multiplicity of proceedings should be avoided and obliterated. No doubt, the sanctity of the marriage should be preserved. Soon after the marriage, without taking steps for reconciliation, etc, and having sufficient time for reflection, they should not be allowed to approach the Court for divorce and in the meantime, one other aspect, this Court has to see. Unwittingly, if a person filed a petition for divorce without seeking leave and much water has already flown under the bridge in dealing with the said petition, it would not be proper to dismiss that petition on the technical ground after lapse of two years as in this case and it would amount to throwing the baby along with the bathe water.
35. While holding so, I am of the view that exceptions should be exceptional and it should not become the rule. So far this case is concerned, I would like to find fault with the lower Court for numbering the H.M.O.P., without insisting for an application seeking leave under Section 14 of the Hindu Marriage Act, 1955.
36. My mind is redolent of the following legal maxims:
(i) “Actus curiae neminem gravabit”. [An act of the court will prejudice no one.]
(ii) “Quod fieri non debet, factum valet.” [What ought not to be done, when done, is valid.]
37. The lower Court should have returned the petition for divorce when it was presented well within one year from the date of marriage, but it has not been done so and it is only the fault of the Court. Because of the fault of the Court, the party concerned at a later date should not suffer.
38. In this connection, I could also fruitfully refer to the following legal maxims:
(i) “Nul prendra advantage de son tort demesne”. [No one shall take advantage of his own wrong.]
(ii) “Nullus commodum capere potest de injuria sua propria”. [No one can obtain an advantage by his own wrong.]
39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition for divorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.
40. I take it as an opportunity to mandate all the Courts below concerned that hereafter whenever any petition for divorce is filed within a period of one year from the date of marriage, the Courts should invariably return that petition without numbering it and unless leave is obtained, such petition for divorce should not be entertained. Point Nos.(i) and (ii) are answered accordingly.
41. In the result, both the Civil Revision Petitions are dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.
42. On hearing the order pronounced, the learned Counsel for the husband would seek oral leave of this Court so as to enable his client to prefer appeal to the Honourable Apex Court. I am of the considered view that since the order is passed based on the earlier decision of the learned Single Judge of this Court which is based on the decision of the Division Bench of Calcutta High Court, no leave is required.
rsb To
1.The Sub Court, Aruppukottai.on 14 of the Hindu Marriage Act, 1955:

“14. No petition for divorce to be presented withinoneyear of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition oneyear has elapsed since the date of the marriage:

Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before oneyear has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of oneyear from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said oneyear upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorcebefore the expiration of oneyear from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said oneyear.”

24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorcewithinoneyear from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after oneyear from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.

39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition fordivorcewithinoneyear from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed withinoneyear period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.

———————————————————————————————————

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20/11/2012
CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA
C.R.P.(PD)(MD)No.2265 of 2012
and
C.R.P.(PD)(MD)No.2266 of 2012
and
M.P.(MD)No.1 of 2012
in
C.R.P.(PD)(MD)No.2265 of 2012
C.R.P.(PD)(MD)No.2265 of 2012:
G.Ganesh Babu ... Petitioner/Petitioner/
Respondent

Vs.

A.P.Arthi … Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.

A.P.Arthi … Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.

For Petitioner … Mr.K.K.Ramakrishnan For Respondent … Mr.J.Barathan * * * * * :COMMON ORDER C.R.P(PD)(MD)No.2265 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.

2. C.R.P(PD)(MD)No.2266 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.

3. Heard both sides.

4. The petitioner herein namely G.Ganesh Babu and the respondent herein namely A.P.Arthi, are referred to hereunder as husband and wife respectively.

5. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these Civil Revision Petitions, would run thus:

(i) The wife filed the H.M.O.P.No.82 of 2011, during the month of June’ 2011, so to say, within a period of one year from the date of marriage, invoking Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking the following reliefs:

“(a) granting a decree of divorce, dissolving the marriage solemnized between the Petitioner and Respondent on 18.11.2010;

(b) directing the Respondent to pay the costs of this Petition;” however, without filing an application to obtain the leave citing the exceptional circumstances.

(ii) The husband after entering appearance, filed the application in I.A.No.184 of 2011 for rejection of the H.M.O.P.No.82 of 2011 on the main ground that it was presented within one year from the date of marriage and that too, without any application to obtain leave citing exceptional circumstances. The counter affidavit was filed by the husband.

(iv) The lower Court heard both the applications and passed a common order allowing the application filed by the wife and dismissing the application filed by the husband.

6. Being aggrieved by and dissatisfied with the same, the husband preferred these two Civil Revision Petitions challenging and impugning the orders passed by the lower Court.

7. The nutshell facts absolutely necessary for the disposal of these two Civil Revision Petitions would run thus:

The petitioner and the respondent got married as per Hindu rites and customs on 18.11.2010 at Aruppukottai. Subsequently, the wife during June’ 2011, so to say, within one year, filed the petition seeking divorce.

8. The learned Counsel for the husband would put forth and set forth his arguments, the warp and woof of the same, would run thus: Obtaining the leave of the Court is sine quo non for filing the H.M.O.P., for divorce within one year and it is mandatory and it cannot be simply ignored as directory. The object of Section 14 of the Hindu Marriage Act, 1955, was not taken into consideration by the lower Court. If this sort of practice is allowed, then the sanctity attached to the marriages, would be set at naught. Over and above that, the reasons found stated for obtaining the said ex post facto leave is frivolous and there is nothing exceptional in it. The dowry demand is the pith and marrow of the alleged exceptional circumstances found set out in the affidavit accompanying the petition filed by the wife. Accordingly, the learned Counsel for the husband citing various precedents, would pray for allowing the I.A.No.184 of 2011 and for dismissal of H.M.O.P.No.82 of 2011.

9. Whereas in a bid to mince meat and torpedo and pulverise the arguments as put forth on the side of the husband, the learned Counsel for the wife, would pyramid his arguments, the pith and marrow of them would run thus: The entire reading of Section 14 of the Hindu Marriage Act, 1955, would connote and denote, project and portray that the obtention of such leave was not mandatory. So far this case is concerned, it is not that wilfully the H.M.O.P.No.82 of 2011 was filed within one year without obtaining leave and unwittingly alone, the petition for divorce was filed without filing the application under Section 14 of the Hindu Marriage Act, 1955, narrating the exceptional circumstances. As such, the lower Court taking into consideration the pro et contra, thought that it would be a mere waste of time to reject the H.M.O.P., and thereby paving the way for the wife to file a fresh petition for divorce on the same grounds.

10. The learned Counsel for the wife also cited various decisions in support of his arguments.

11. The points for consideration are:

(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date of marriage?

(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?

Point Nos.(i) and (ii)

12. At the outset itself, I would like to fumigate my mind with the decisions cited by both sides.

13. The learned Counsel for the husband placed reliance on the following decisions:

15. A mere running of the eye over the aforesaid precedents would highlight and spotlight the fact that the Division Bench of the Calcutta High Court in Rabindra Nath Mukherjee v. ITI Mukherjeealias Chatterjee reported in CDJ 1991 Cal HC 017, held that seeking leave of the Court within one year to file the petition for divorce from the date of marriage, was only directory and not mandatory and the said decision was followed by the learned Single Judge of this Court inIndumathi v. Krishnamurthy reported in 1998 (III) MLJ 435. The aforesaid decision of this Court is also followed by the learned Single Judge of the Calcutta High Court in Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140. However, the Division Bench of the Karnataka High Court took a different view of the matter in Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.

16. As such, the decision of the learned Single Judge of this Court following the decision of the Division Bench of the Calcutta High Court, is very much available before me. Normally, the decisions rendered by the learned Single Judge of this Court should be followed by another learned Single Judge of this Court and the judicial discipline warrants such a procedure.

17. However, the learned Counsel for the husband would place reliance on the decision of the Division Bench of the Karnataka High Court, which is against the decision of the learned Single Judge of this Court as well as the Division Bench of the Calcutta High Court Simply because, a subsequent Division Bench of Karnataka High Court is in variance with the decision of the learned Single Judge of this Court and the Division Bench of the Calcutta High Court, I am not bound to simply follow the said judgment of the Karnataka High Court. The learned Single Judge of this Court placed reliance on the decision of the Division Bench of Calcutta High Court. As such, two Division Benches of two different High Courts have two different views and the learned Single Judge of this Court followed the view of one of such decisions of the Division Benches and wherefore, I am justified in following the decision of the learned Single Judge of this Court and consequently, the decision of the Division Bench of the Calcutta High Court.

18. Over and above that, I would also like to independently furnish my own views in this matter.

19. My mind is redolent and reminiscent of the following legal maxims:

20. I would also like to extract hereunder the relevant excerpt from the famous treatise “Maxwell on The Interpretation of Statutes [Twelfth Edition by P. St. J. Langan]”:

Chapter 5 – Restrictive Construction:

“Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended.”

One other excerpt from the same treatise would run thus: “Section 12 (3) of the Matrimonial Causes Act 1950 provided that if the spouse obtaining a decree nisi of divorce did not make an application for it to be made absolute six months after the trial, then the other spouse could make application within a further period of three months and, if the circumstances warranted, obtain a decree absolute. The Court of Appeal held that this did not oust the jurisdiction of the court to substitute a decree of judicial separation for a decree nisi: “had it been the intention of the legislature to revoke this jurisdiction, it would have been done in a clearer way than by inference from the subsection.”

21. On a mere running of the eye over those legal maxims and the principles found enshrined in the aforesaid famous treatise, I am of the view that generally, the time limit prescribed in the procedural laws are directory and not mandatory and further that they are only by way of taking a cue that the time limit prescribed under Section 14 of the Hindu Marriage Act, 1955, will not cut at the jurisdiction of the Court. However, the learned Counsel for the husband placing reliance on the decision of the Honourable Apex Court in Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC), would submit that so far Marriage Laws are concerned, time stipulated cannot be taken as directory, but it should be taken as mandatory.

22. I would like to point out that in the aforesaid decision of the Honourable Apex Court relating to Section 13-B of the Hindu Marriage Act, 1955, what was found stressed is that the consent of both sides should be essential at both stages, viz., at the time of jointly presenting the petition and at the time of obtention of divorce after the prescribed period of six months. There could be no quarrel over such a proposition. However, Section 14 of the Hindu Marriage Act, 1955, is on a different footing.

23. I would like to extract hereunder Section 14 of the Hindu Marriage Act, 1955:

“14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:

Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”

24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.

25. At this juncture, I would like to recollect the following decisions:

26. The pith and marrow, the gist and kernel of the aforesaid precedents is that whenever any condition is stipulated in law in negative language, then that itself is not sufficient to hold that the law contemplated the said provision as mandatory, but the consequences of such non-adhering to the time limit also should be found spelt out in the statutory provision. Under Order VIII Rule 1 of the Code of Civil Procedure, even though in negative language, the provisions are found spelt out, the consequences were not found spelt out. Hence, the Honourable Apex Court consistently held that such time stipulated cannot be taken as mandatory, so much so also, here under Section 14 of the Hindu Marriage Act, 1955, the legislators in their wisdom thought not to impose any consequences of such non-adherence to the time limit.

27. On the other hand, as correctly held by the learned Single Judge of this Court earlier, in the decision cited supra, even a person who got leave by misrepresentation was given the benefit of divorce, but that would take effect after one year from the date of marriage. Hence, I am of the considered view that the decision of the learned Single Judge of this Court in Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435 with great respect is the binding precedent on the point concerned.

28. The learned Counsel for the husband also referred to the Halsbury’s Laws of England – Fourth Edition – by Lord Mackay of Clashfern – Volume 29(3) – 2001.

29. I am of the view that when the earlier decision of this Court is clear and unambiguous on the point, I need not dilate further on that issue.

30. On factual basis, the learned Counsel for the husband would try to canvass his case by pointing out that so far the exceptional circumstances mandated in the affidavit of the wife, are not really exceptional circumstances, but they are only relating to alleged dowry harassment and cruelty. Whereas the learned Counsel for the wife would submit that the allegations found spelt out in the affidavit accompanying the application filed by the wife seeking ex post facto leave were of such a nature that they were so horrible for the wife who is a Doctor by profession.

31. The wife in her affidavit accompanying the application in I.A.No.26 of 2012, set out thus:

“4. I submit that even before the solemnization of marriage, the respondent and his family members demanded 120 sovereign of golden jewels, Rs.8,00,000/- cash and stridhan articles worth about Rs.2,00,000/- from my parents. My parents were put under severe strain and mental agony as they had to arrange the above dowry before the solemnization of marriage. Only after receiving the cash amount of Rs.8,00,000/- on hand one day prior to the marriage, the respondent has agreed to perform the marriage.

5. I submit that after marriage, the conjugal home was set up at Arupukkotai in the house of respondent. At the time of living at Arupukkottai, the respondent has demanded a further dowry of Rs.60,00,000/- from me by saying that his father has borrowed huge amounts from outer sources as a loan to get higher education for him and hence, he has to settle those amounts by getting dowry amount from me. The respondent added that he had married me for money alone. The respondent’s father, and his father’s brother namely, Gunasekaran, the respondent’s brother and sister have often harassed and tortured me to get money to the tune of Rupees Sixty lakhs and a Honda city car from me.

6. The Respondent and his family members often threatened me that they will not allow me to live peacefully, unless I brought the above said dowry amount from my parents I lived at Hosur under unsafe condition under threat to life from the respondent. I submit that the respondent used to demand dowry continuously without any basis, and hence, because of the above said attitudes of the respondent, I could not lead a peaceful family life.

7. I submit that I am living separately till date. Even though my parents conducted peace talks with the respondent and his family, all the efforts made by them had gone on vain and the respondent firmly states that unless his additional dowry demand of Rupees Sixty Lakhs and Honda city car and a house at Arupukkottai is fulfilled, there is no possibility of unite with the petitioner.

8. It is submitted that finally on 10.3.2011, a peace talk was arranged by the respondent with caste leaders, relatives and elders. In that peace talks, the respondent and his family members told that unless, their additional dowry demands are fulfilled, there is no other way except to dissolve the marriage by way of divorce. Hence, we filed a divorce petition by mutual consent before this Hon’ble Court without any prior condition. More over, a divorce agreement was executed between me and the respondent on 10.3.2011 itself, before the competent witnesses and the respondent has put his left hand thumb impression in the said agreement engrossed in Rs.50/- Stamp paper. On the same date itself, the respondent has got the signatures of me and my parents in several blank papers and unfilled stamp papers. Even though the respondent has agreed to return the stridhan articles and cash amount in the Court. The respondent has got back his “Thali” tied to me and all the formalities were done before the above said competent witnesses on 10.3.2011.

9. I submit that myself and respondent has filed a divorce petition under mutual consent before this Hon’ble Court in H.M.O.P.No.50 of 2011. To my shock and surprise, the respondent told me that unless the house property at Arupukkottai is purchased and given in his name for the tune of Rs.40,00,000/-, he will not accept for mutual divorce. As the respondent’s illegal demand could not be fulfilled by me, I filed the present H.M.O.P.No.82/2011.”

(extracted as such.)

32. As such, based on the above narration of facts, she contended that because of exceptional circumstances found set out therein, she was constrained to file the H.M.O.P.No.82 of 2011, within a period of one year from the date of marriage. No doubt, those allegations are only allegations and they were not proved. But, in my considered opinion, those are all serious allegations of exceptional nature and the lower Court also treated as exceptional circumstances, warranting no interference by this Court.

33. It is a singularly singular case wherein the husband and the wife both happened to be Doctors in medical profession and from the view point of the wife, the conduct of the husband in treating her constituted the exceptional circumstances and utmost hardship and discomfiture. The lower Court being the first Court of facts, after considering the allegations and counter allegations, thought fit to virtually grant ex post facto leave and this Court being the revisional Court is having no reason to interfere with the same.

34. As suggested by the learned Counsel for the husband, if the H.M.O.P., has to be dismissed, it would not be for anything, but for the wife to file a fresh H.M.O.P., on the same grounds. As such, the same process already underwent would enure. The multiplicity of proceedings should be avoided and obliterated. No doubt, the sanctity of the marriage should be preserved. Soon after the marriage, without taking steps for reconciliation, etc, and having sufficient time for reflection, they should not be allowed to approach the Court for divorce and in the meantime, one other aspect, this Court has to see. Unwittingly, if a person filed a petition for divorce without seeking leave and much water has already flown under the bridge in dealing with the said petition, it would not be proper to dismiss that petition on the technical ground after lapse of two years as in this case and it would amount to throwing the baby along with the bathe water.

35. While holding so, I am of the view that exceptions should be exceptional and it should not become the rule. So far this case is concerned, I would like to find fault with the lower Court for numbering the H.M.O.P., without insisting for an application seeking leave under Section 14 of the Hindu Marriage Act, 1955.

37. The lower Court should have returned the petition for divorce when it was presented well within one year from the date of marriage, but it has not been done so and it is only the fault of the Court. Because of the fault of the Court, the party concerned at a later date should not suffer.

38. In this connection, I could also fruitfully refer to the following legal maxims:

(i) “Nul prendra advantage de son tort demesne”. [No one shall take advantage of his own wrong.]

(ii) “Nullus commodum capere potest de injuria sua propria”. [No one can obtain an advantage by his own wrong.]

39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition for divorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.

40. I take it as an opportunity to mandate all the Courts below concerned that hereafter whenever any petition for divorce is filed within a period of one year from the date of marriage, the Courts should invariably return that petition without numbering it and unless leave is obtained, such petition for divorce should not be entertained. Point Nos.(i) and (ii) are answered accordingly.

41. In the result, both the Civil Revision Petitions are dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.

42. On hearing the order pronounced, the learned Counsel for the husband would seek oral leave of this Court so as to enable his client to prefer appeal to the Honourable Apex Court. I am of the considered view that since the order is passed based on the earlier decision of the learned Single Judge of this Court which is based on the decision of the Division Bench of Calcutta High Court, no leave is required.

Divorce laws. Here is the list of various divorce laws in India for various religionsIndia has different divorce laws for different religions. Almost all the religions has their own divorce laws in India which are used among themselves. There are separate laws for inter-cast or inter-religion marriages.Divorce laws in India for Hindus is described in Hindu Marriage Act, 1955. Hindu Marriage Act is also used for Sikhs, Buddhists and Jains as they don’t have their own separate marriage and divorce laws. Here is the list of various divorce laws in India for various religions

The Indian Divorce, Act Special Marriage Act, the Parsi Marriage and Divorce Act and the Hindu Marriage Act, provide for annulment of the marriage, since its very inception, on grounds such as the non-fulfillment of mandatory conditions.. The Indian Divorce act requires confirmation by the High Court to come into effect.

Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.

Sec.13-B of Hindu Marriage Act 1955- Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Procedure for Filing for Divorce

The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or “streedhan” and litigation expenses.

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– Family Matters( Divorce, Annulment of Marriage, Mutual Divorce, International Divorce Matters, Maintenance Case, Domestic Violence, all Family Law Matters.)

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